Preliminary Analysis Of Legal Issues Involved In Betrothal Gifts Under The New Situation

The moment, although laws in china does not include adjustments to engagement and betrothal gifts, but engagement and a man giving betrothal gifts to a woman when they get engaged are prevalent in folk. With the development of society, people's living standards improve, the amout of betrothal gifts become larger and larger. Increasing mobility of the population, and there is no legal regulation just moral constraints and also other various reasons result that breach of marriage engagements is increasing, dispute about the return of betrothal gifts is also increasing. Currently there is no clear conclusion about the nature of betrothal gifts ,we mainly rely on the judicial interpretation of 2003 to resolve the disputes of betrothal gifts, but its provisions are too general, there are many defects. To resolve complex disputes of betrothal gifts, the nature of engagement and betrothal gifts may be clear in the law ,and we must analys defects of existing laws, improve related legislation, while give judges some discretion to allow the judge handle the betrothal gifts disputes on considearation of the local customs, to let people really accept the judgments and consciously enforcement the judgments.This article is divided into five parts:The first part is the concept of betrothal gifts and evolution. Betrothal gifts is also called bride price, betrothal gifts generally refers a certain amount of money or property given by man to woman when they are engaged. Giving betrothal gifts is logo of their marriage,they are unmarried spouse, so betrothal gifts is an important way to prove that the engagement establish.The ancient clan society, when a man marry a woman he should give two deer skins as a gift to the woman,but when the Western Zhou Dynasty the habit developed that the marriage shuld be agreed by parents , and parents should delegate a go-between to propose a marriage.when the "six-li" finish ,the engagement establish. The giving of betrothal gifts is particularly important in the "six-li". When woman accept the betrothal gifts, they are unmarried spouse, the custom of engagement and giving betrothal gifts sustained until the Qing Dynasty. After the founding of new China, engagement and giving betrothal gifts still exist in folk.But in 1950, 1980 and 2001, "Marriage Law" ,there is no clear provisions on engagement and betrothal gifts, there is no detailed legal provisions to according to solve a large number of betrothal gifts disputes , judgments from courts in different places are materially different, this is harmful to safeguard the authority of the law. The second part analys the function of betrothal gifts, initially betrothal gifts have the value of labor compensation, repay the exparenting; express a strong desire of man to marry the woman; marriage credit guarantees; to achieve transfer of property, family property division and other functions, when we draw a conclusion to the nature of betrothal gifts ,we must take the role of traditional betrothal gifts into account.The third part is to explicit the nature of betrothal gifts. The theory of transferring ownership does not found the difference between common bestowal and giving betrothal gifts, if the betrothal gifts are same as common bestowal, it is adverse for the protection of the interests of the adverse party; the theory of contract look the engagement as the main contract, the betrothal gifts contract is a contract from the marital relationship, but it is not entirely dependent on the existence of the engagement.even in the absence of marriage certificate or marriage ceremony, man can also express the desire of marriage through giving betrothal gifts, marriage in our country have not characterized as a contract,so this theory is untenable; the theory of granting with obligation views that the recipient must fulfill the duty to enter into marriage relations;when one party breach the contract the adverse party can not enforce compliance requirements, so it does not meet the general characteristics of an obligation;the theory of the granting with conditions is common sense,but can not explain why even they marriage when they divorce,the woman should return the betrothal gifts, the theory of granting with the purpose, there is no such classification in the existing law,this dispute can only be handled under the common bestowal; the author in favor of the theory of advance deposit of agreement, considering the processing of the return of civil rule, it should come to this conclusion.Part IV lists the existing law on betrothal gifts and betrothal gifts dispute settlement provisions and to analyze its shortcomings: lack of detailed provisions on engagement and betrothal gifts; the terminology in relevant approval and judicial interpretations of the betrothal gifts is not uniform; lack of precise definition of the scope of the betrothal gifts; 2003 Judicial interpretation does not explain the concept of the common life; have no specific requirements on the proportion of the amount returned; have not consider the responsibility of the answerable party when return the betrothal gifts; judicial interpretation ignores the consideration of the status quo in today's society; subject of litigation is not clear .The fifth section presents the recommendations on the betrothal gifts dispute settlement :In the Marriage Law explicit the nature of engagement and betrothal gifts, unified legal language; definite the scope of the betrothal gifts precisely; take various factors into account, to refer to the provisions of divorce,improve betrothal gifts return rules, to take fault liability, to handle the betrothal gifts dispute in cohabitation, invalid marriage and revocable marriage correctly, definite litigants in a betrothal gifts lawsuit, if the betrothal gifts is paid by the man with the personal property, the man personally for the plaintiff, or the man's parents as plaintiffs, if the betrothal gifts are used by the woman as the personal property, the woman should be accused individuals, or the woman's parents should be a co-defendant; judge should apply law to facts accurately measuring interests of both party, grasp the essence of the legal rules that betrothal gifts should be returned if marriage but does not live together; the proportion of return should be clear in legislation ,while giving judges some discretion to allow a judge to combine the local customs and law.Today, engagement is still abound, and has the trend of raging wider, we should respect the customs , improve relevant legislation about betrothal gifts, solve related disputes better.